"...a weakness of the will."

In his Rumhole of the Bailey books, John Mortimer discusses the problem of "judgeitis," a disease that afflicts many denizens of the bench. Judgeitis consists of making lengthy, pompous, and legally pointless comments from the bench that serve only to illustrate that the judge in question has a hopelessly inflated view of his own profundity, influence, and importance. As my all time favorite example of this vice, I offer up the entirety of Justice Harry Blackmun's concurrence in Welsh v. Wisconsin, 466 U.S. 740 (1984).

In broad terms, the case stands for the principle that when one is judging the existence of exigent circumstances justifying a warrantless search under the Fourth Amendment the gravity of the offense involved has some role to play. Hence, one might be able to burst into a home without a warrant to recover evidence of mass murder that was about to be destroyed, but the imminent destruction of evidence relating to jay walking wouldn't justify dispensing with a warrant. In Welsh the minor crime in question consisted of a misdemeanor DUI offense. Justice Blackmun authored an opinion whose only purpose was to state that he was outraged -- outraged! -- that DUI was a misdemeanor in Wisconsin. The most gratuitously pompous nugget of a very gratuitous and pompous opinion is this passage:

I yield to no one in my profund personal concern about the unwilliness of our national consciousness to face upt to -- and do something about -- the coninuing slaughter upon our Nation's highways, a good percentage of which is due to drivers who are drunk or semi-incapacitated because of alcohol or drug ingestion.

Id. at 755 (Blackmun, J. concurring). This is judgeitis in the grand style. Here we have a case involving the right to privacy and the limits of the Fourth Amendment's warrant requirement, and Justice Blackmun takes this moment to once more to affirm his profound personal concern about traffic safety to the consciousness of the nation, yielding to no one!

If you missed it, read the always interesting Fareed Zakaria's "To Become an American" in yesterday's Washington Post. Zakaria has a fun little rhetorical gambit, suggesting that the anti-immigration forces in the U.S. are trying to transform American immigration law along European lines. (That ought to get under the skin of the oh so redder-than thou House Republians.) According to Zakaria:

Many Americans have become enamored of the European approach to immigration -- perhaps without realizing it. Guest workers, penalties, sanctions and deportation are all a part of Europe's mode of dealing with immigrants. The results of this approach have been on display recently in France, where rioting migrant youths again burned cars last week. Across Europe one sees disaffected, alienated immigrants, ripe for radicalism. The immigrant communities deserve their fair share of blame for this, but there's a cycle at work. European societies exclude the immigrants, who become alienated and reject their societies. . . . . Compared with every other country in the world, America does immigration superbly. Do we really want to junk that for the French approach?

Zakaria also pin point the fundamental contradiction faced by many conservative Republicans who support free trade in goods but not free trade in labor:

The United States has a real problem with flows of illegal immigrants, largely from Mexico (70 percent of illegal immigrants are from that one country). But let us understand the forces at work here. "The income gap between the United States and Mexico is the largest between any two contiguous countries in the world," writes Stanford historian David Kennedy. That huge disparity is producing massive demand in the United States and massive supply from Mexico and Central America. Whenever governments try to come between these two forces -- think of drugs -- simply increasing enforcement does not work. Tighter border control is an excellent idea, but to work, it will have to be coupled with some recognition of the laws of supply and demand -- that is, it will have to include expansion of the legal immigrant pool.

I am basically a Republican, but my GOP identity often feels much like the family identity that I have when my crazy relation shows up at the family reunion. Exhibit one would be the frequent spasms of anti-immigration Know Nothing-ism that my party belches forth from time to time. Bill Kristol gets what I am talking about:

The American people are worried about immigration. In a Pew Survey released last week, 52 percent of Americans saw immigration as a burden, while 41 percent said it strengthened the country; 53 percent support sending illegals home, while 40 percent endorsed a path to citizenship. Given the hoopla about illegal immigration, this division is in fact surprisingly close. In any case, it means GOP senators and congressmen--and presidents--have plenty of room to show leadership and to resist demagoguery. Most Republican officeholders know that the political--and moral--cost of turning the GOP into an anti-immigration, Know Nothing party would be very great. It could easily dash Republican hopes of becoming a long-term governing party. How many Republicans will have the courage to stand up and prevent the yahoos from driving the party off a cliff?

My wife and I recently took a trip to Southern California, and one has only to drive around Los Angeles to realize the depth of the hypocrisy involved in opposition to immigration -- particularlly Latino immigration -- in California and elsewhere. Simply put, LA would would come a screaming halt without Latino immigrants. America benefits from immigration. The logic is simple: hard-working, motivated people want to come to this country to make a living. Let them come!

More importantly, they will come -- regardless of what the U.S. does. Not even the Know Nothing anti-immigrant reps in the House, I suspect, have what it takes to create a system that would effectively exlcude immigration. Given the sheer length of the U.S. borders and the number of people who want in, stopping immigration would require massive, truly inhuman levels of coercion. Do we really want to turn large chunks of the U.S. into a quasi-police state in order to keep English-firsters from the horrible indignity of hearing someone speak Spanish? I hope and pray not. So long as we maintain some minimum level of legal humanity as a nation, we are increasingly going to live in a nation that is browner and more likely to dream in Spanish or some other non-English language.

As it is, our immigration laws are none too humane. Indeed, when I was clerking the only cases where I really felt nasty, like I was a cog in a vast, unjust, bureacratic machine were the immigration cases. In particular, I remember one woman who had -- according to the record accepted as true by the INS -- been gang raped as a form of political reprisal and seen her husband, father-in-law, and son murdered. Thanks to the neo-Know Nothings who drafted our immigration laws, there was no asylum for this woman. Ick! Ick! Ick!

There are worlds contained in this grain of sand. Klaxon, of course, is the case where the Supreme Court decided that a federal court sitting in diversity case should apply the choice of law rules of the state in which it sits in order to determine what state's law it should apply. A technical issue to be sure, but one that in itself represents the triumph of a particular view of law -- positivism -- as well as a particular view of federalism and the breadth of certain constitutional provisions, such as the Full Faith and Credit Clause. Footnote 20 itself is interesting for what it says about the development of American legal thought. First, it is striking that it collects the law review articles that "noted" the case.

These were brief pieces written by students, not even rising to the level of formal Notes, which are in effect mini-law review articles. (For example, here is a copy of my own law review note.) Today, case comments are the intellectual bottom feeders of the law review food chain. First, they are written by students. Second, they are written about doctrine. Third, they focus on a single case. At the top of the food chain -- of course -- are articles written by professors, which focus on theory, and draw extensively -- perhaps exclusively -- from non-legal sources. The gap between the top and the bottom of the law review pecking order reflects the broader and much lamented gap between the profession of law and the profession of legal scholarship. The fact that a treatise would stoop to the citation of case comments is evidence of this gap.

Yet the citation of comments also invokes a world of practice that no longer exists. The case comment was originally envisioned as a tool for the practicing lawyer. It would keep him updated on developments in the law, and provide a practically useful synthesis of cases. Yet this assumed a world in which the development of case law was of primary importance, and in which that case law developed at a rate that made it possible to identify leading cases. Neither of these conditions still hold. Today lawyers practice in a world where case law is frequently of secondary importance to legislation, regulations, and even opinion letters by regulatory enforcers. All of these things are produced in a volume that makes the notion of keeping abreast of developments in the law via general purpose law reviews laughable. Today, things like BNA reporters have replaced law reviews for those few attorneys who can escape from the particularities of practice to keep informed about "general" developments in their field.

Footnote 20's invocation of a lost legal world also says something about life of legal literature. Wright and Miller is a staple of my life. In litigation practice, I consult it more often than any other treatise. Footnote 20 points out its odd layering. Passages in some sections clearly trace back to the first edition of the treatise, while others are as recent as the newest pocket part. In this sense, Wright and Miller is like the ship of the Argonauts, rebuilt one plank at a time while on a long voyage. In this sense it is like the law itself, which is no doubt a large part of what marks it off as a masterful treatise. The law always involves the recovery of lost worlds, but never for their own sake. Rather, lawyers grab at the bits of the past that continue to intrude upon the present to govern disputes of today.

Over the weekend I had a very interesting conversation with a former commercial banker who once upon a time wrote a major loan for a pay-day loan company. Generally speaking, the pay-day loan industry is seen as the absolute bottom-feeders of the consumer credit market. These are the guys that write short term loans -- generally two weeks -- at 15% interest. In the eyes of many, this looks like legalized loan sharking, extracting huge interest payments from the weak and the desperate. My banker informant, however, told me a different story.

First, he said that the default rate on pay-day loans is quite low -- around 8%. What this means is that for the vast majority of borrowers, the interest is not compounding. Furthermore, the pay-day loan companies don't want it to compound and aggressively weed out customers who try to roll the short-term loans over from week to week. The reason for this is obvious. Even though the math of 15% interest compounded bi-weekly might look appealing on paper, in practice the debtors are likely to be judgment-proof, collection costs are high, and rolling the loan over suggests that the chances of ultimate repayment are low. In other words, contrary to the imagination of many a left-leaning consumer bankruptcy professor, pay-day loan companies are not out to pile up massive interest payments on tiny principle amounts.

The second thing that I learned was that a big part of success in the pay-day loan market comes from customer service. The folks who use pay-day loans are generally treated like crap at the bank. This is hardly surprising. After all, these are the sorts of people who bounce checks and are unlikely to qualify for a nice Fannie-Mae standard mortgage that can be immediately sold in the secondary market. On the other hand, pay-day loan centers treat their customers very nicely, although they also make sure that they get follow-up calls reminding them of repayment due dates. What this means, however, is that pay-day loans are quite labor-intensive given the amount of money involved.

The last thing I learned was the relationship between pay-day loans and checking accounts. Most pay-day loan companies require that their customers have a checking account. More interestingly, however, many people go to pay-day loans because of their checking accounts. Many of these loans are written to insure that checks written on a depleted account don't bounce if they clear before pay day. The reason that people go to the pay-day loan companies is that at many banks the penalty and service fees that one pays on a bounced check are in excess of what the pay-day loan company charges. In other words, folks turn to the pay-day loan companies to get protection from more "respectable" lenders.

Of course, to really verify these stories I would want some real data. Still, I am inclined to trust my banker informant, and at the very least the story sounds plausible. Voluntary contracts have a way of working to the advantage of both parties...

I recently found myself doing some research at work on the treatment of IP licensing agreements in bankruptcy. For a variety of reasons having mainly to do with historical accidents going back the bad old days of Swift v. Tyson it can matter a great deal in bankruptcy whether or not an IP agreement is treated as a contract or a license. Reading through the cases on the issue, I found myself increasingly frustrated. This distinction, I thought to myself, is really artificial. The whole way of doing this inquiry assumes that there is some essential attribute of contractness or licenseness that lawyers can identify. Contracts and licenses, however, aren't abstract essences. They are human creations that serve our own human purposes. Rather than asking what a particular agreement is we ought simply to ask ourselves what we want to do.

Stepping back from my internal dialog, I was once again struck by the extent to which I find the ghost of Oliver Wendell Holmes, Jr. in my thinking. My frustration, of course, is thoroughly Holmesian, and I no doubt have it because during the first year of law school I had Holmes beaten into my skull, although -- insidiously enough -- his name and thought was never really explicitly placed on the table. Everything was done in the vague guise of teaching me to "think like a lawyer." Ha! I was not taught to think like a lawyer. I was taught to think like a somewhat bitter and cynical Boston Brahman judge who picked up a hatred of abstraction from his dinner buddies in Cambridge. Consider this from the "The Path of the Law":

Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it?

In a letter to a friend, Holmes once remarked that the true glory of a scholar is the hope of a "postponed power" that comes from the fact that generations hence men who have forgotten him will nevertheless continue to think to the cadence of his thoughts. I find it irksome how often I find myself unconsciously dancing to Holmes's cadence.

The first and overarching error of neoconservatives, Mr. Sullivan, is their willingness (nay, eagerness) to use war to achieve their ideological objectives. Neoconservatives see war as a tool, perhaps messy and unpleasant, not to mention expensive, but sometimes useful.

War is the greatest horror we inflict upon one another, destroying bodies and lives, inflicting untold pain, often on innocent bystanders. War must be a last resort, undertaken with great reluctance, when no other option is available--appropriate only when necessary to defend ourselves against an immediate aggressor (as international law recognizes).

Broadly speaking, it seems to me that there are two arguments that could support Tamanaha's position. The first is some sort of Kantian duty never to do harm to others (except in particular circumstances like immediate self-defense) regardless of the consequences, which could include things like leaving a brutal and murderous regime in power. Notice, this argument is not based on any calculus of costs and benefits or means and ends.

The second argument would be that war never actually solves problems, but will only beget more violence and death. This is the more pragmatic intuition behind Sting's lines, "There's no such thing as a winnable war/It's the lie we don't believe any more." I actually think that this is the more interesting argument.

The neocons clearly did not subscribe to Sting's position. In so doing, it seems to me that they were inheritors of a peculiarly American strategic heritage. The fact of the matter is that through out its history America has been able to solve strategic problems through war. Indeed, America's wars -- with some notable exceptions like Korea, Vietnam, and the Gulf War -- have always resulted in a transformed world where the old threats and problems simply no longer existed. Contrast this to the European experience, where wars routinely left precisely the same strategic situation in place that called them into being. The most dramatic example of this was World War I, which began with a resentful and ultimately expansionist Germany surrounded by anxious powers, and ended with a resentful and ultimately expansionist Germany surrounded by anxious powers. However, lesser examples abound, e.g. the Peace of Utrecht, the Peace of Augsburg, the Peace of Paris, etc. all of which left the same balance-of-power system in place that had led to war to begin with.

Ironically, World War II is the war that fixed the American and European views of war. In European eyes it is the holocaust that showed that war just doesn't work. In American eyes it is the evidence that American strength has the ability to solve even the most intractable of strategic problems, namely the centuries of bloody balance of power war making in Europe.

I think that both the American and European view of war are wrong. Tamanaha is surely right that war is a horrible catastrophe. On the other hand, I am not convinced that it is the worse catastrophe that could befall someone, and I don't think that the universe of things worse than war is exhausted by immediate threats to one's own safety. Yet the neocons have clearly been seduced by America's history of military successes, viewing the inconclusive wars of the second half of the 20th century as aberrations from the norm. The fact is that war is always a dangerous and terribly costly tool. Sometimes it will work, and sometimes it will not, and one needs more than good intentions to decide which case is which.

OrinKerr has an interesting post summarizing an article on the rise of conservative politics at Harvard Law School, and the contributions of the Federalist Society. Kerr writes:

I went to Harvard during Bob Clark’s deanship, and I think it’s fair to say that (at least to the students) he didn’t seem to be a forceful agent of change. However, in a particularly intriguing passage, Hicks determines that Clark reshaped the admissions criteria somewhat so that ended preferences for those who “had taken time off, engaged in public works, or participated in other significant outside activities or experiences.” According to Duncan Kennedy, those policies had “contributed to the liberal-radical strength” during James Vorenberg’s tenure as Dean. The absence of those policies, and increased focus on LSAT scores and GPAs, apparently led to more conservative students being admitted. (See pages 701-02) If the admissions policies really did change that much, I think this is a notable explanation. Still, I would want to know more before making a conclusion one way or the other.

I also went to HLS under Dean Clark. (Kagan became dean the year that I graduated.) I do think that there are two other things that Clark did. First, he seems to have stopped the hiring momentum of the CLS movement. By the time that I arrived, they were no longer radicals poised to storm the gates. Rather, they seemed like rather sad and bitter failed revolutionaries who were ghettoized in HLS's somewhat-less-than-stellar jurisprudence area while the law and economics jocks hired by Clark grabbed the lime light.

My second bit of Clark information is more specific. Under Dean Clark, HLS made the decision not to discount the grades of Brigham Young University. The argument was that many intelligent students go to BYU for religious reasons, and hence the student body is more competitive than one would otherwise think given the university's overall profile. Prior to this move, any BYU GPA was discounted because getting a 4.0 at lowly BYU wasn't nearly as impressive as getting a 4.0 at chronically grade inflated Harvard. Or so the argument went. If -- as I suspect is the case -- the decision not to discount BYU GPA's extended to other religious universities, then one would expect a larger crop of religiously conservative students. Of course, under the old rules Mormons from BYU might still have benefited due the two years of missionary service that many Mormons perform, although, I would not be surprised if missionary work was not counted under the Vorenberg formula.

Of course all of this is nothing more than idle speculation. I fully agree with Orin that without more actual data it is really hard to say what does or does not matter.

On Friday I found myself eating lunch with a very interesting law professor. We were talking about this that and the other, and the conversation came around to two friends of mine from law school that I knew that the professor knew. I mentioned that these two friends were among the smartest people that I have ever known, which happens to be entirely correct. The professor gave me an indulgent look and said, "That is no doubt a function of your age. I can only hope that in ten years the smartest people you know won't be folks that you met around Gannett House." No doubt a worthy hope, but it is never comfortable to have the obvious truth that you are a greenie vividly pointed out over lunch...